Orissa High Court
Nakula Swain And Ors. vs Jogendra Das on 8 April, 1996
Equivalent citations: 1996(I)OLR534, 1996 A I H C 4364, (1996) 81 CUT LT 765, (1996) 1 ORISSA LR 535, (1996) 3 CIVLJ 251, (1996) 4 CURCC 158
Author: Dipak Misra
Bench: Dipak Misra
JUDGMENT Dipak Misra, J.
1. The defendants-petitioners have preferred this Civil Revision challenging the order in Misc. Appeal No. 40/92 passed by the learned Addl. District Judge, Bhubaneswar confirming the order passed by the learned Munsif, Bhubaneswar in Misc. Case No. 71/92 refusing to entertain an application filed under Order 9, Rule 13 of the Code of Civil Procedure (in short, 'the Code') to set aside the ex parte decree.
2. The factual scenario as emerges is as follows :
The opp. party as plaintiff instituted Title- Suit No. 209/90 in the Court of Munsif, Bhubaneswar for correction of Record-of-rights. The present revisionists who were the defendants in the Court below entered appearance in the aforesaid suit and sought adjournments on many an occasion for the purpose of filing of written statement. On 19-8-1991 the petition for time was rejected and the suit was fixed for ex parte hearing. The defendants did not take steps to recall the order setting them ex parte and allowed the suit to proceed ex parte. Two witnesses were examined, one on 3-9-1991 and another on 4-9-1991 and the suit was posted to 13-9-1991 for delivery of judgment, and ultimately judgment was pronounced on 21-9-1991 and eventually an ex parte decree was passed. On 24-3-1992 the defendants filed a petition under Order 9, Rule 13 of the Coda forming the subject-matter of Misc. Case (Mo. 71/92 praying for setting aside the ex parte decree. It was stated in the said petition that on 19-9-1991 a petition was filed by the defendants seeking an adjournment to file written statement. The said petition was rejected by the Court but the defendants were not aware of the same. Subsequently they came to know that the case was posted to 24-3-1992 for ex parte hearing. This information, as pleaded, was given by the Advocate's clerk. Later on they came to learn that the ex parte decree had already been passed on 21-9-1991 and accordingly they filed the application for setting aside the same. It has also been stated in the petition that defendant No.1 who was looking after the case had been taken ill from 5-3-1992 to 18-3-1992 and as the Court had remained closed from 18-3-1992 to 22-3-1992 they could not file the petition earlier for setting aside the ex parte decree. An application was filed under Section 5 of the Limitation Act for condonation of the delay in filing the petition.
The aforesaid petition was resisted by the plaintiff contending that the defendants had been afforded sufficient opportunity to contest the suit by filing written statement and they, by their conduct, had allowed the ex parte judgment and decree to be passed having complete knowledge about the proceedings of the suit. Their further objection was that as the defendants deliberately did not take any steps there was no reason to show indulgence to them. Lack of sufficient cause was also canvassed with vehemence. The petition filed under Section 5 of the Limitation Act was also seriously contested.
3. To substantiate the plea the defendants examined two witnesses and the plaintiff examined one witness. Defendant No. 1 was examined as witness No. 1 for the petitioner therein and the registered clerk was examined as PW 2. The plaintiff examined himself as OPW No. 1. The learned Munsif on the basis of the materials on record came to hold that there was no justification to set aside the ex parte decree. Exception was taken to the delay in filing the application. Being aggrieved by the aforesaid order passed by the learned Munsif an appeal was preferred before the learned Addl. District Judge, who has taken the view that sufficient opportunity was granted to the defendants to file written statement and they were well aware of the dates of the proceeding. The appellate Court disbelieved the plea of the defendants that they were not aware of the dates of the proceeding and were informed that the case was posted to 24-3-1992 for ex parte hearing. The learned appellate Judge entertained with regard to the conduct of the defendants for remaining silent for more than six months as it was expected of them to know that the cases were not adjourned for a period of more than six months at a time. The plea of knowledge of the defendants, after obtainment of the notice issued in Mutation Case No. 290/92, was not given credence by the Courts below. The cause indicated for approaching the Court after a period of five months for filing the application under Order 9. Rule 13 of the Code was not found sufficient by the appellate Court, Concluding in this manner the learned Addl. District Judge affirmed the findings of the Court below and dismissed the appeal. Hence this revision is at the instance of the defendant-petitioners.
4. I have heard Mr. B. P. Ray, the learned counsel for the petitioners. Though a counsel has appeared for the opp. party-plaintiff, there was no appearance on 26-3-1996 and later on 29-3-1996 when the case was heard for the purpose of final disposal. It is submitted by Mr. Ray that the petitioners are illiterate persons and they were totally dependent on the clerk of the advocate. Defendant No. 1 (petitioner No. 1 to the present revision) was looking after the case and he was informed by the registered clerk of the advocate about the adjournments from time to time. It is the submission of Mr. Ray that the property involved is substantial as far as the petitioners are concerned and if the ex parte decree remains unchallenged that would amount to extinction of their right, title and interest and substantially imperil their livelihood. The counsel has also emphasized that they had no reason to allow an ex parte decree to be passed when they had entered contest but due to unavoidable circumstances they could not file written statement and they did not have knowledge with regard to the dates fixed for ex parte hearing. They have become victims of circumstances and they are in such state of distress because of communication gap between them and the advocate's clerk. The last plank of his submission is that the defendants are prepared to compensate the plaintiff for the harassment he is likely to face in the event of ex parte decree is set aside.
5. On perusal of the impugned orders it becomes clear that the Courts below did not find the evidence of PWs 1 and 2 as untrustworthy. The rejection of the evidence of PW 1 by the learned Munsif, Bhubaneswar has been based on such grounds which cannot stand close scrutiny. The reasoning of the trial Judge is to the following effect :
"It is stated by PW 1 that they have filed the present case on 23-3-1992. He has proved Ext. 1 which is the Medical certificate granted by Dr. P. C. S. Rao. On going through Ext. 1 it appears that PW 1 was ill from 5-3-1992 to 18-3-1992 and he was advised for rest by the doctor. Nothing has been elicited from the mouth of PW to disbelieve the Medical Certificate that he was suffering from 5-3-1992 to 18-3-1992. PW 1 has disclosed during cross-examination that although he had filed a time petition on 19-8-1991 but he came to the Moharir on 20-8-1991 and took the date from him. PW 1 has stated during cross-examination that he is serving as a Government Servant in the State Council of Education Research Training Centre at Bhubaneswar and he was on leave during such period of his illness. But no record from his office has been proved or produced to ascertain such plea of the petitioner."
The aforesaid reasoning is really not justified not to accept the version of PW 1 who was in charge of the suit. While discussing the evidence of PW 2, the registered clerk of the advocate, the trial Court has not discarded the entry in his diary which was marked as Ext. 2. His information to PW 1 has also not been disbelieved. Exception has been taken to the manner in which the application under Section 5 of the Limitation Act was filed seeking condonation of delay. it has been observed that prayer was for condonation of delay from 4-3-1992 to 18-3-1992 and further period from 19-3-1992 to 23-3-1992 but there is, in effect, no prayer for condonation of the delay from the date of passing of the decree. As it appears, the rejection of the petition by the trial Court is mainly on the basis of improper explanation of the delay and in appropriate prayer in the petition for condonation of delay. The appellate Court has taken exception to the conduct of the defendants who accepted the statement of the registered clerk of the advocate that the case was posted after six months for ex parte hearing. That apart, the appellate Court has also observed that there was no reason for other defendants not to file the, application for setting aside the ex parte decree when defendant No. 1 (petitioner No. 1 herein) was. suffering. He has also echoized the feeling of the trial judge in regard to the petition filed for condonation of delay.
6. The concept of "sufficient cause" is dependent on facts of each case. There cannot be a strait Jacket formula to indicate what exactly construes sufficient cause. Peculiar circumstances of each case has also to be taken into consideration. The Courts have to adjudge on the touch-stone of pragmatic parameters. It is common knowledge that the litigants depend on the registered clerks of the advocates and they have intrinsic faith in them. When the Courts below have not disbelieved or discarded the relevant entry in the diary of the advocate's clerk it is inappropriate to conclude that the defendants should have understood that cases are not adjourned by six months. It is not unlikely that there might be communication gap. Possibility of lack of communication cannot be totally brushed aside. The other defendants not coming forward to file the application is really inexceptionable. In many a litigation though there are number of parties whether they are plaintiffs or the defendants, all of them do not shoulder the same responsibility. Ordinarily, one or two look after the litigation. It is not uncommon stand of the defendants that defendant No. 1 was looking after the litigation and he was taken ill. Findings of the Courts below that the application was barred by limitation and in effect there was no proper prayer to condone the delay are unsustainable, As the impugned orders reflect the defendants have explained their belated approach in filing the application by indicating that they had no knowledge earlier and could only come to know about the ex parte decree when the/came to cause an inquiry on that date which was communicated to them by the advocate's clerk. Thereafter, the delay for fifing the petition was due to illness of defendant No 1. The medical certificate as produced by DW 1 has been accepted by the Courts below. It the facts are appreciated in proper perspective it becomes beamingly clear that the prayer was for condonation of delay but the stand was different for different periods, In any case the approach of the Courts below has been extremely technical in the matter where the mandate of the law does not call for such technical delineation. Litigations are required to be adjudicated on merits. Sometimes due to unavoidable circumstances or due to incomprehensible inadvertences parties fail to participate in the proceeding though their substantial rights are affected. A recalcitrant litigant is not to be given indulgence, but simultaneously, insurmountable difficulties and the pertinence of fact situation in every case has to be given due weightage. A malicious move to allow an ex parte decree to be passed and thereafter to file art application to set it aside is abominable and repulsive but when bona fide mistakes occur the Courts are required to have a lenient, liberal and compassionate approach in the case at hand, I find, the defendants were not exactly negligent but they were victims of circumstances having reposed unimpeachable faith in their advocate's clerk which was expected of them under the normal circumstances. They cannot be permitted to suffer for having trusted the person who was engaged by them to look after the case. The finding of the Courts below that there are no sufficient cause is not sustainable. While I am of the view that an opportunity should be afforded to the present petitioners resist the claim of the opp. party-plaintiff simultaneously I cannot ignore the hardship that would be caused to the plaintiff when the ex parte decree is set aside. To strike a balance I am of the firm view, the plaintiff is to be compensated. Taking into consideration the nature of litigation I set aside the ex parte decree passed by the Courts below subject to payment of cost of Rs. 1500/- by the defendants-petitioners to the plaintiff in the Court below within a period of six weeks from today. As the suit is pending for last six years. I direct that the same should be disposed of expeditiously. In the event of cost being paid and the ex parte decree being set aside the suit should be disposed of by end of October, 1996. If the cost is not paid within the time stipulated above, the ex parte decree would become operative.
7. In the result, the Civil Revision is allowed. There shall be no order as to costs.