Orissa High Court
Giridhari Pradhan And Others vs P.S. Prasad .... Opp. Parties on 6 December, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 802 OF 2019
Giridhari Pradhan and others .... Petitioners
Mr. Upendra Kumar Samal,
Advocate
-versus-
P.S. Prasad .... Opp. Parties
Mr. Gautam Mishra,
Senior Advocate being assisted by
Mr. Saswat Jena, Advocate
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 06.12.2021 15. 1. This matter is taken up through hybrid mode.
2. This CMP has been filed assailing the order dated 23rd July, 2019 (Annexure-7) passed by learned 2nd Additional District Judge, Berhampur in FAO No. 33 of 2016, whereby he allowed the appeal by setting aside the order dated 28th November, 2016 (Annexure-5) passed by learned Civil Judge (Junior Division), Berhampur in CMA Nos. 16 and 17 of 2014.
3. The Plaintiffs (D.Hrs.) and Defendant (J.Dr.) in the court below are Petitioners and Opposite Party respectively in this CMP.
4. As revealed from the case record, T.S. No. 99 of 1999 was filed by the Plaintiffs-Petitioners in the Court of learned Civil Judge (Junior Division), Berhampur for specific performance of contract. The sole Defendant-Opposite Party appeared on 28th August, 1999 through his lawyer and prayed for an adjournment to file written statement. The suit was, thereafter, adjourned to 12th October, Page 1 of 10 // 2 // 1999, 25th November, 1999, 4th January, 2000 and 10th March, 2000 for filing of written statement. On 6th April, 2000, the Defendant took no step and remained absent on repeated calls. As such, he was set ex parte and the case was posted to 30th April, 2003 for ex parte hearing. Ex parte judgment was pronounced on 13th May, 2003 and ex parte decree was drawn up on 25th June, 2003. On 25th August, 2003, the Plaintiffs (D.Hrs.) filed Execution Case No. 21 of 2003. On 27th October, 2003, the Defendant (J.Dr.) appeared through his lawyer and filed a time petition to file objection. On 10th April, 2004, the Defendant (J.Dr.) filed counter-cum-petition with a prayer to dismiss the execution case or in the alternative to stay the execution proceeding till disposal of T.S. No. 68 of 1997. The petition filed by the Defendant (J.Dr.) was rejected on 21st July, 2004 on the ground that he had not challenged the validity of the decree. Thereafter, the Plaintiffs (D.Hrs.) filed a draft sale deed on 16th August, 2004. Learned executing Court vide its order dated 30th November, 2004 issued notice to the Defendant (J.Dr.) to file objection to the said draft sale deed. On 24th February, 2005, the Plaintiffs (D.Hrs.) filed requisites for execution of the document or endorsement of negotiable instrument as per Order XXI Rule 34 C.P.C. and accordingly, learned executing Court had taken step against the Defendant (J.Dr.). On 22nd November, 2005, the Defendant (J.Dr.) filed objection, which was rejected by learned executing Court vide order dated 17th March, 2004 and the draft sale deed filed by the Plaintiffs (D.Hrs.) was approved. On 5th May, 2007, the Plaintiffs (D.Hrs.) filed a petition praying to depute an officer of the Court with authorization for presentation of the document before the Sub-Registrar, Berhampur (Rural), which was allowed. On 12th July, 2007, the Defendant (J.Dr.) filed an Page 2 of 10 // 3 // application under Section 47 C.P.C., which was registered as I.A. No. 42 of 2007. On 26th July, 2007, learned executing Court stayed further proceeding of the execution case till finalization of right, title and interest of the decreed property in T.S. No. 68 of 1997. Assailing the same, the Plaintiffs (D.Hrs.) filed W.P.(C) No. 16581 of 2007. This Court vide order dated 2nd April, 2014 allowed the said writ petition and set aside the order dated 26th July, 2007 and directed to proceed with the execution case except two plots involved in T.S. No.68 of 1997.
4.1. At this stage, the Defendant (J.Dr.) filed CMA No. 16 of 2014 under Order IX Rule 13 C.P.C. to set aside the ex parte decree along with CMA No. 17 of 2014 for condonation of delay. It was specifically stated inter alia that the Defendant (J.Dr.) had no knowledge about the ex parte decree passed against him as he was staying at Vijayanagarm at the relevant time. The Defendant (J.Dr.) also filed an application under Order XXI Rule 29 read with 151 C.P.C. for stay of execution of the decree till disposal of CMA Nos. 16 and 17 of 2014. Learned Civil Judge (Junior Division), Berhampur vide order dated 30th October, 2014 rejected the said application. Assailing the said order, the Defendant (J.Dr.) preferred CMP No. 1428 of 2014, which was disposed of vide order dated 19th November, 2014 with a direction to dispose of both CMA Nos. 16 and 17 of 2014 in accordance with law. The Defendant (J.Dr.) being aggrieved by the said order preferred Special Leave to Appeal (C) No. 5275 of 2015 before the Hon'ble Supreme Court, which was disposed of on 7th October, 2016 with a direction to dispose of the petition filed under IX Rule 13 C.P.C. within a period of three months. Upon receipt of the said order, learned Civil Judge (Junior Division), Berhampur vide his order Page 3 of 10 // 4 // dated 28th November, 2016 dismissed the petition filed under Order IX Rule 13 C.P.C. by the Defendant (J.Dr.). Challenging the same, the Defendant (J.Dr.) preferred FAO No. 33 of 2016 before learned District Judge, Berhampur, which was allowed vide order dated 23rd July, 2019 by setting aside the order passed in CMA Nos.16 and 17 of 2014 and thereby allowing the petition filed under Order IX Rule 13 C.P.C. It is against the said order, this CMP has been filed.
5. Although several contentions have been raised by learned counsel for the parties, the main contention that requires consideration in this CMP is, whether the Defendant (J.Dr.) was prevented by sufficient cause in appearing before learned trial court on the date of hearing and whether the delay in filing the petition under Order IX Rule 13 C.P.C. was bona fide.
6. Mr. Samal, learned counsel submits that the petition under Order IX Rule 13 C.P.C. was not at all bona fide and it was intended to harass the Plaintiffs (D.Hrs.). The Defendant (J.Dr.) was represented through his lawyer and he took adjournments on different dates to file written statement. But, ultimately no written statement was filed and the Defendant (J.Dr.) was set ex parte on 6th April, 2000 due to his non-appearance. The ex parte hearing was concluded on 30th April, 2003 and ex parte judgment was passed. The explanation given by the Defendant (J.Dr.) in the petition under Order IX Rules 13 C.P.C. as well as the petition for condonation of delay is that he was staying at Vijayanagaram at the relevant time and was not available at Berhampur. It is his submission that the same cannot be a ground to condone the delay of 10 years and 11 months in filing the petition under Order IX Rules 13 C.P.C. Learned Civil Judge taking into consideration the materials available on record and the explanation given by the Page 4 of 10 // 5 // Defendant (J.Dr.) rejected the petition under Order IX Rule 13 C.P.C. However, learned appellate Court without properly scrutinizing the materials on record and only by placing the burden on the Plaintiffs (D.Hrs.) to prove the negative has passed the impugned order. Learned appellate Court proceeded under a misconception that learned Advocate engaged by the Defendant (J.Dr.) had not properly instructed him to file a petition under Order IX Rule 13 C.P.C. at the appropriate time and stage. He further submits that the plea taken by the Defendant (J.Dr.) is not sustainable as he had engaged different sets of counsel at different point of time and had also moved the Hon'ble Supreme Court in assailing the order passed by this Court in refusing to stay of the execution proceeding. In the facts and circumstances of the case, no reasonable person can conceive that a counsel, who can advise the Defendant (J.Dr.) to move the Hon'ble Supreme Court, cannot be advised to file a petition under Order IX Rule 13 C.P.C. assailing the ex parte decree. In support of his case, Mr. Samal, learned counsel relied upon the decisions in the cases of Parimal -v- Veena @ Bharti, reported in (2011) 3 SCC 545, B. Madhuri Goud -v- B. Damodar Reddy, reported in (2012) 12 SCC 693, Mahabir Singh - v- Subhash and others, reported in (2008) 1 SCC 358, P.K. Ramachandran -v- State of Kerala and another, reported in (1997) SCC 556 and Mohd. Sahid and others -v- Raziya Khanam (Dead) through Legal Representatives and others, reported in (2019) 11 SCC 384. He, therefore, prays for setting aside the impugned order under Annexure-7 and to remit the matter back to the learned appellate Court for fresh adjudication in accordance with law.
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7. Mr. Mishra, learned Senior Advocate, on the other hand, vehemently objected to the contention raised by Mr. Samal, learned counsel. It is his submission that the ex parte decree was admittedly not within the knowledge of Defendant (J.Dr.). On receiving notice in the execution case, he came to know about the same. Thereafter, the Defendant (J.Dr.) diligently made an attempt to protect his right in the property in question by contesting the execution case. It is to his misfortune learned Advocate engaged by the Defendant did not advise him to file a petition under Order IX Rule 13 C.P.C. at the appropriate time. Hence, there is a delay in filing the petition under Order IX Rule 13 C.P.C., but that itself cannot be a ground to reject the petition under Order IX Rule 13 C.P.C., when the delay in filing such petition was bona fide and not intentional. Relying upon the decision in the case of Rajkishore Das -v- Nilamani Das, reported in AIR 1968 Orissa 140, Mr. Mishra, learned Senior Advocate submits that in an extreme case, a petition under Section 47 C.P.C. can also be treated to be a petition under Order IX Rule 13 C.P.C. and the same can be adjudicated in accordance with law. Thus, if the date of filing of the petition under Section 47 C.P.C. is taken into consideration, then the substantial period of delay in filing the petition under Order IX Rule 13 C.P.C. can be reduced. He further submits that the delay in filing the petition under Order IX Rule 13 C.P.C. cannot stand on the way of substantial justice. In the petition under Order IX Rule 13 C.P.C., the Defendant (J.Dr.) has pointed out the defects and irregularities in the impugned ex parte judgment and decree. Thus, the Defendant (J.Dr.) has fair chance to succeed in the suit. Learned appellate Court taking into consideration the matter in its totality has allowed the petition under Order IX Rule 13 C.P.C.
Page 6 of 10// 7 // When the impugned order under Annexure-7 does not suffer from any perversity, material irregularities or infraction of law, it should not be interfered in a petition under Article 227 of the Constitution, more particularly when learned appellate Court has given an opportunity to the Defendant (J.Dr.) to contest the case on merit, who is admittedly the owner of the suit property. Loss, if any, caused to the Plaintiffs (D.Hrs.) can be compensated by cost, which has been directed to be paid by learned appellate Court. He, therefore, prays for dismissal of CMP.
8. In reply to the submission made by Mr. Mishra, learned Senior Advocate, Mr. Samal, learned counsel submitted that in the instant case, the ratio decided in the case of Rajkishore Das (supra) will not be of any help to the Defendant (J.Dr.) as the petition under Section 47 C.P.C. has already been rejected and it has attained its finality. Thus, under no circumstances, the petition under Section 47 C.P.C. could have been treated to be a petition under Order IX Rule 13 C.P.C. Further, while adjudicating the petition under Order IX Rule 13 C.P.C., learned appellate court could not have ventured to go into the merit of the suit. As such, the impugned order is not sustainable in law.
9. Heard learned counsel for the parties and perused the materials available on record.
10. Admittedly there is a delay of more than 10 years and 11 months in filing the petition under Order IX Rules 13 C.P.C., but the circumstance shows that the Defendant (J.Dr.) had no knowledge of the ex parte decree. From the materials available on record, it transpires that when the Defendant (J.Dr.) received summons in the execution case, he came to know about the ex parte decree. There can be no iota of doubt that the Defendant (J.Dr.) has Page 7 of 10 // 8 // been contesting the execution case diligently. Thus, it is apparent that the Defendant (J.Dr.) is keen to protect his interest in the property.
11. True it is that neither the petition under Order IX Rule 13 C.P.C. nor the petition for condonation of delay in CMA Nos. 16 and 17 of 2014 provide the detailed explanation with regard to the delay from passing the impugned ex parte decree till the petition under Section 47 C.P.C. was filed, but, fact remains that the Defendant (J.Dr.) had no knowledge of the ex parte decree. This Court in the case of Utkal Oil & Chemicals Industries -v- The Syndicate Bank, reported in 123 (2016) CLT 359, has elaborately discussed about the role of the Court in considering the application under Order IX Rule 13 C.P.C. due to negligence of the learned Advocate appearing on behalf of the Defendant. This Court also in the case of M/s. WESCO Ltd. -v- Parbati Ghibila and others, reported in 120 (2015) CLT 1001 held as follows:
20. There is no quarrel over the fact that the appellant-
company has a Law Department and is a Corporate Body and the instant suit was in the charge of Deputy Manager (Legal) of the company. Had the appellant-company been more vigilant, the situation might have been avoided, but the court below while adjudicating the matter should have kept in mind that a man becomes prudent after an incident occurs. Fact remains, on a good-faith, the appellant-company relied upon its Advocate who did not take appropriate steps at the relevant time to defend his client. However, on being aware about the fate of the suit, the appellant-company tried its best to get the ex parte decree set aside and contest the suit on merit. True it is that some delay has occurred in approaching the Court to file an application under Order 9 Rule 13 C.P.C., but that should not stand on the way of substantial justice being done in view of the fact that the appellant-company has tried its best, in the facts and circumstances of the case, to get the ex parte order set aside. There is no quarrel to the principles laid down by the Hon'ble Apex Court in the case of Postmaster General (supra). But, the same are distinguishable on facts. In the case of Postmaster Page 8 of 10 // 9 // General (supra), the delay caused in observing the necessary official formalities was not accepted to be sufficient cause for condonation of delay. But in the instant case, the delay has occasioned primarily due to the inaction of learned Counsel. In the case of Basawaraj (supra), the expression "sufficient cause"
has been described at Paragraph-9 of the said judgment, which is quoted herein below.
9. Sufficient cause is the cause for which defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the view point of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have 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 it cannot be alleged that the party has "not acted diligently" or "remained inactive".
However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the Court that he was prevented by any "sufficient cause"
from prosecuting his case, and unless a satisfactory explanation is furnished, the Court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose."
(See: Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee, AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v. Veena @ Bharti, AIR 2011 SC 1150; and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629)
12. It appears that learned appellate court has taken the pain to discuss the rival contentions raised by learned counsel for the parties and passed a reasoned and detailed order taking assistance of the ratio decided by this Court as well as by the Hon'ble Page 9 of 10 // 10 // Supreme Court. By no stretch of imagination, it cannot be stated to be an order suffering from any perversity, material irregularity or infraction of law.
13. In that view of the matter, I am not inclined to interfere with the impugned order so far as it relates to setting aside the ex parte decree. However, taking into consideration the value of the property and the loss suffered by the Plaintiffs (D.Hrs.), who all throughout pursued the suit as well as execution proceeding diligently and thereby accrued some right, the cost imposed by learned appellate Court appears to be meager and insufficient. Accordingly, this Court modifying the impugned order under Annexure-7 to that extent directs that the Defendant (J.Dr.) shall pay a cost of Rs.50,000/- (Rupees fifty thousand only) in place of Rs.15,000/- (Rupees fifteen thousand only) to the Plaintiffs (D.Hrs.) within a period of one month from today and in that event, the Defendant (J.Dr.) shall be allowed to take part in the hearing of the suit, i.e. T.S. No.68 of 1997.
13. With the aforesaid observation and direction, this CMP is disposed of.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge bks Page 10 of 10