Orissa High Court
M/S. Western Electricity Supply ... vs Prabati Ghibila And Others on 10 July, 2015
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
HIGH COURT OF ORISSA: CUTTACK
FAO NO. 581 OF 2014
From the order dated 24.07.2014 passed by the Civil Judge (Senior
Division), Sambalpur in CMA No. 17 of 2013 arising out of C.S. No. 49
of 2012.
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M/s. Western Electricity Supply Company
Of Orissa Ltd., represented through its
Managing Director, WESCO, Corporate
Office, Burla. ...... Appellant
-Versus-
Prabati Ghibila and others ...... Respondents
For Appellant : Mr. P.K. Mohanty, Senior Advocate.
M/s. D.N. Mohapatra,
Smt. J. Mohantyh,
P.K. Nayak, S.N. Dash
& A. Das.
For Respondents: M/s. S.K. Mishra, R.N. Debata,
B.D. Sahu & S.S. Sahoo
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Date of Judgment: 10.07.2015
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P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
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K.R. Mohapatra, J.The appellant, who is defendant in C.S. No. 49 of 2012 of the court of learned Civil Judge (Senior Division), Sambalpur, has come up in this appeal assailing the order dated 24.7.2014 passed in CMA No. 17 of 2013 rejecting an application under Order 9 Rule 13 2 C.P.C. to set aside the ex parte judgment and decree dated 16.3.2013 and 25.3.2013 respectively in the aforesaid suit.
2. The plaintiffs are respondents in this appeal. Plaintiffs' case, in brief, is that one Prufulla Ghibila died on 30.8.2011 due to electrocution for the negligence on the part of the defendants-company and thus, his dependants-legal heirs (widow and children) filed a suit claiming compensation of Rs. 30,40,000/- with 18% interest per annum and cost.
3. It is not disputed that the defendant-appellant on receipt of summons appeared through Mr. G.K. Satpathy, Advocate on 03.08.2012 and sought for time to file written statement. Subsequently, the defendant-appellant was set ex parte due to non- appearance of its Advocate on 5.10.2012. The suit was taken up for ex parte hearing on 8.01.2013 and 14.02.2013 respectively. On 08.03.2013, argument was closed. On 16.03.2013, ex parte judgment was passed and ex parte decree was signed on 25.3.2013 by the learned Civil Judge (Senior Division), Sambalpur. Subsequently, Execution Case No. 22 of 2013 was filed by the plaintiffs and the defendant-appellant was noticed to appear and file show cause on 14.08.2013.
4. After receipt of the notice in the Execution Case No. 22 of 2013, the concerned officer of the defendant-company contacted Mr. Satpathy, learned Advocate appearing for it and requested Mr. Satpathy to look into the matter and file a petition for setting aside the 3 ex parte judgment and decree. Again on 20.8.2013, he visited the Chamber of concerned Advocate but the learned Advocate intimated him that due to his illness, he could not enquire into the matter and also informed that as the Advocates of Sambalpur Bar Association were on strike, no steps could be taken till strike is called off. The strike was called off on 30.9.2013. Thus, on 1.10.2013, the defendant-company contacted Mr. Satpathy, Advocate and requested him to take steps without any further delay. Again on 8.11.2013, the concerned officer contacted Mr. Satpathy, for follow up action, but on that date he, for the first time, refused to conduct the case on the plea of his illness and returned the brief to the defendant-company. On receiving the case record, the defendant-company immediately engaged another Advocate on 11.11.2013 who filed an application to inspect the case records in C.S. No.49 of 2012 as well as in Execution Case No. 22 of 2013. On 13.11.2013, the case record was made available for inspection from which it revealed that the former Advocate had not taken any step after filing Vakalatnama, therefore, the defendant-company was set ex parte and ex parte judgment was passed in the matter. Thus, without making any further delay, the defendant-company filed CMA No. 17 of 2013 under Order 9 Rule 13 C.P.C. for setting aside the ex parte judgment and decree passed in C.S. No. 49 of 2012 along with a petition for condonation of delay. To show its bona fide, the defendant-company also filed written statement along with the CMA and prayed for acceptance of the same 4 and to allow it to contest the suit after setting aside the ex parte decree.
5. The plaintiffs-respondents filed their show cause strongly refuting the averments made in the plaint. They specifically prayed that the defendant-company has duly received the summons in the suit and was represented by an Advocate, who took time to file written statement. Due to sheer negligence on the part of the defendant- company and its Advocate, it was set ex parte and ex parte judgment was passed in the matter. They also contended that grounds taken in the petition under Order 9 Rule 13 C.P.C. as well as in the petition for condonation of delay can, at no stretch of imagination, be sufficient to condone the delay and set aside the ex parte judgment and decree and also contended that the compensation awarded was reasonable. They further contended in the show cause that the Board of Directors of the company has not authorized the C.E.O. or any other officer either to contest the suit or the CMA. Thus, CMA was not maintainable and prayed for dismissal of the same.
6. In order to prove the case, the defendant-company examined one Chandrasekhar Ray, Deputy Manager (Legal), WESCO as P.W. 1. On the other hand, the plaintiffs did not examine any witness.
7. The learned Civil Judge (Senior Division), Sambalpur considering the materials on record and the submission of the respective parties held that the party should not suffer for the latches 5 of an Advocate but, at the same time, the party must be vigilant about progress of the case and he must keep touch with his Advocate to know the different stages of the case. The learned Civil Judge also took exception to the fact that Mr. G.K. Satpathy, leaned Advocate for the defendant-company was not examined in the case, who could have thrown light in the matter. The learned Civil Judge also took exception to the fact that though defendant-appellant had knowledge about the ex parte decree before 14.8.2013 i.e. the date of appearance in the execution case, the CMA was filed only on 15.11.2013. It was also held that the period consumed for engagement of another Advocate and inspection of case records cannot be a ground to condone the delay, particularly when the defendant-company had knowledge about the passing of the ex parte decree prior to 14.8.2013. Thus, the learned Civil Judge vide his order dated 24.7.2014 dismissed the CMA. Hence, the present appeal.
8. During pendency of the appeal, a warrant of attachment in respect of current account A/c. No. 32989620455 of the defendant- company was issued by the executing court for which the appellant filed Misc. Case No. 286 of 2014 before this Court for stay of the order of attachment. This Court considering the submission made vide its order dated 29.4.2015 stayed execution of the warrant of attachment of the current account subject to the appellant/defendant-company depositing a sum of Rs. 19,64,985/- in the executing court by 6 01.5.2015. Accordingly, on depositing the aforesaid amount in the executing court, the warrant of attachment has been stayed.
9. Mr. A. Das, learned counsel for the appellant-company strenuously urged that the court below was not justified in dismissing the CMA on the ground of delay in filing such petition. He also submitted that for the latches of the Advocate, a party should not suffer. The defendant-company after receiving the summons in the suit, i.e. C.S. No. 49 of 2012, engaged Mr. G.K. Satpathy, Advocate to defend its case. As such, the defendant-company remained under a bona fide impression that the learned Advocate was taking appropriate steps in the matter and would protect the interest of the company. At no point of time, Mr. Satpathy, learned Advocate engaged on its behalf, had intimated about the development of the case. As such, no fault can be found with the company for default of the Advocate engaged on its behalf. Only on receiving the notice in the execution case, the defendant-company could come to know about passing of the ex parte decree and Mr. Satpathy was requested to take appropriate steps in the matter to set aside the ex parte decree, but due to his illness and strike (cease work) called by the Advocates of the Sambalpur Bar, immediate steps could not be taken to file a petition for setting aside the ex parte decree. Subsequently, Mr. Satpathy, learned Advocate for the company refused to conduct the case on the ground of his illness and returned the case record on 8.11.2013. Without making any further delay, the appellant-company 7 engaged another Advocate on 11.11.2013. As the learned Advocate had no knowledge about the development of the case, he filed a petition for inspection of the case record in C.S. No. 49 of 2012 as well as Execution Case No. 22 of 2013. The case record was made available to him on 13.11.2013. On 14.11.2013, the court remained closed on the occasion of Muharam. Hence, the petition under Order 9 Rule 13 C.P.C. was filed on 15.11.2013 along with written statement, which was registered as CMA No. 17 of 2013. The CMA was accompanied with a petition under Section 5 of the Limitation Act detailing the aforesaid facts.
10. Mr. Das, learned counsel for the appellant further urged with vehemence that all through the defendant-company has acted bona fide. The company had a substantial issue to be raised in the matter as the death of Prafulla Ghibila caused due to heavy rain and lightening and not due to electrocution. Thus, there was no negligence on the part of the defendant-company which allegedly caused the death of said Prafulla. He further contended that on a bare reading of the ex parte judgment, it would appear that compensation awarded is at the higher side. He submitted that no material was placed with regard to income of the deceased. However, on a guess work, the learned Civil Judge assessed the monthly income of the deceased at Rs. 12,000/-. Thus, an inflated compensation has been awarded. The monthly income of a stone cutter in the district of Sambalpur would be much less. Moreover, the deceased Prafulla was 8 a BPL Card Holder. He further submitted that non-examination of the conducting Advocate cannot be looked into adversely as law is well settled that conducting Advocate cannot be summoned to lead evidence in the court. On the aforesaid submission, he prayed to set aside the impugned order and direct the learned trial court to give the defendant-company an opportunity of hearing in the suit by accepting the written statement.
11. Mr. S.K. Mishra, learned counsel for the plaintiff- respondents, on the other hand, supporting the impugned order strongly refuted the contention raised and the assertion made by the learned counsel for the appellant. He submitted that the learned trial court on a vivid and detailed discussion of the materials on record and taking into consideration the legal position passed the impugned order. It is his submission that as the summons was duly served on the defendant-company, it has to establish that the company was prevented by sufficient cause from appearing in court when the suit was called for hearing. Reiterating the observation made by the learned trial court, he submitted that there is no conflict on the legal position that a party should not suffer for the latches of his Advocate, but at the same time, the party must be vigilant about progress of the case and he must keep touch with his Advocate to know about the different stages of the case. Order 8 Rule 1 C.P.C. mandates that the defendant-company should file a written statement within thirty days from the date of service of summons on it and in no circumstance, it 9 should be later than ninety days from the date of service of summons. The present appellant-company has a Law Department and the suit as well as the execution case is being looked after by a responsible officer, who is none other than the Deputy Manager (Legal) posted in the office at Burla. Said Deputy Manager (Legal), who is P.W. 1, in his evidence, did not depose regarding steps taken by him in the suit after the matter was entrusted to Mr. G.K. Satpathy, Advocate. Mr. Mishra also raised the question about the diligence of the appellant as well as its Advocate to defend the case in the suit. The CMA does not disclose about the steps taken by the company in between 10.7.2013 to 3.11.2013 which was admitted by P.W. 1 in his evidence. Register containing the receipt of letters though available with the company was not produced in the court and no complaint about the alleged negligence of Mr. Satpathy, learned Advocate was made before the State Bar Council by the company. Thus, he submitted that no sufficient cause has been shown either for condonation of delay or to set aside the ex parte decree. The award of compensation is just and reasonable. As such, the appeal merits no consideration and the same is liable to be dismissed.
12. It is not disputed at the Bar that in C.S. No. 49 of 2012, the defendant-appellant entered appearance on 3.8.2012 through Mr. G.K. Satpathy, Advocate and sought for time to file written statement. However, on 5.10.2010, the defendant-company was set ex parte due to non-appearance of its Advocate. Ex parte hearing of the case was 10 taken up on 8.01.2013 and 14.02.2013, ex parte judgment was pronounced on 16.3.2013 and ex parte decree was signed on 25.3.2013. The company had engaged Mr. G.K. Satpathy who entered appearance in the suit on 3.8.2012 and sought for time to file written statement in the suit. Normally, the Advocate engaged on behalf of a party intimates about the stages of the suit to his client so that proper step can be taken at the right time to defend the case effectively and the client acts as per the instruction of the Advocate. When Mr. Satpathy did not appear on 5.10.2012 and take appropriate steps to file written statement, no fault can be found with the appellant- company for such default. It is a different matter that the company should be vigilant to take steps on its own, but when it has engaged an Advocate to defend the suit, the company has to act as per the instructions of its counsel and it so happened in the instant case. Law is no more res integra that the court should not be a silent spectator to a situation, where an innocent party is suffering injustice merely because his chosen advocate defaulted to take appropriate steps at the relevant time. Mr. Mishra, learned counsel for the respondent does not dispute this position of law. This view gets support of the decision of the Hon'ble Supreme Court in the case of Rafiq & Anr vs. Munshilal & Anr., reported in AIR 1981 SC 1400 which reads as follows:
"................. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The 11 answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted..........."
13. On the other hand, Mr. Mishra, learned counsel for the respondents relied upon the decision in the case of Badani Parida -v- Smt. Mahanga Parida, reported in 2013 (Suppl.-II) OLR 612, wherein, this Court relying upon the decision of the Hon'ble Apex Court held in the facts and circumstances of the case that grounds of Lawyer's latches cannot be clothed to cover up the latches of the party. The facts and circumstance of that case is quite different in the case at hand.
14. In view of the above, I have no hesitation to hold that the appellant-company should not suffer for the latches of its Advocate on the date it was set ex parte.
15. Mr. Das, learned counsel for the appellant, however, submitted that had the appellant been aware about the default of the Advocate engaged on its behalf, it could have taken appropriate steps immediately but to its misfortune, the appellant-company was never intimated about the same and it came to know about the ex parte decree only on receipt of the notice in Execution Case No. 22 of 2013. On receipt of the notice in the said execution case, the concerned officer of the company immediately contacted Mr. Satpathy, Advocate immediately and apprised him about the notice received in the 12 execution case and the ex parte decree passed in the suit. He also requested Mr. Satpathy, Advocate to take steps to get the ex parte decree set aside. The appellant-company through its representative again contacted Mr. Satpathy on 20.8.2013 for follow up action, but the learned Advocate intimated that due to his illness, he could not enquire into the matter and as the Lawyers of Sambalpur Bar Association were on strike, proper steps could be taken only after the strike is called off on 30.9.2013. Thus, on 1.10.2013, the appellant visited the learned Advocate and requested him to take steps immediately without any further delay. Again on 8.11.2013, the concerned Officer of the appellant-company contacted Mr. Satpathy for follow up action. But he refused to conduct the case and returned the brief to the appellant. Thus, the appellant-company engaged another Advocate on 11.11.2013, who filed an application for inspection of case records. The case record was made available on 13.11.2013 for inspection. On 14.11.2013 being a holiday, the CMA was filed on 15.11.2013. Thus, the delay caused in filing the CMA was not deliberate and the same was bona fide.
16. Mr. Mishra, learned counsel for the respondents, on the contrary, further contended that such submission cannot be taken into consideration because there is no pleading regarding steps taken in the petition filed under Order 9 Rule 13 C.P.C. between 10.7.2013 to 13.11.2013 by the defendant-company, which was admitted by P.W. 1 at paragraph-4 of the cross-examination.
13
Order 6 Rule 2 C.P.C. reads as follows:
"2. Pleading to state material facts and not evidence.--
(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words."
17. It is the trite law that the basic and cardinal rule of pleadings are that the pleading has to state the 'material facts' and not the evidence. It mandates that every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleads, relies for his claim or defence.
The expression 'material facts' has not been defined. But those facts upon which a party relies for a claim or defence, are called the 'material facts'. In other words, it is a concise form of statement of the plaintiff's cause of action or defendants' defence depends. However, 'particulars' need not be pleaded. Particulars are given during course of evidence, which gives a final touch to the pleadings.
In the instant case, though a concise statement of fact has been stated in the petition under Order 9 Rule 13 C.P.C., the same is elaborated in evidence of P.W. 1 by providing particulars. Though P.W.1 was thoroughly cross-examined, no suggestion with 14 regard to the inaction of the appellant-company in between 10.7.2013 to 13.11.2013 was put to him. This being an application under Order 9 Rule 13, CPC, I refrain myself from analyzing the pleadings in the light of Rule 4 of Order 6 C.P.C. Thus, taking a liberal approach, this Court is of the view that concise statement of facts in the petition under Order 9 Rule 13 C.P.C. has been elaborated in the evidence of P.W. 1, which was not rebutted effectively by the respondents.
18. Mr. Das, learned counsel for the appellant further submitted that there should be a liberal, pragmatic, justice oriented and non-pedantic approach while dealing with an application under Order 9 Rule 13 C.P.C. and the terms 'sufficient cause' should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation. He also submitted that substantial justice being paramount and pivotal the technical consideration should not be given undue and uncalled for emphasis. Borrowing these language from a decision of the Hon'ble Supreme Court in the case of Esha Bhattacharjee Vs. Raghunathpur Nafar Academy, reported in 2013 (12) SCC 649, he further submitted that these principles are squarely applicable to the facts of the case at hand.
19. Mr. Mishra, learned counsel for the respondents, on the other hand, submitted that the appellant-company, namely, WESCO, has a Department of Law and the instant suit was in-charge of an 15 officer who is none other than Deputy Manager (Legal) of the appellant-company. He could have taken appropriate steps in the matter. It is due to his negligence and latches, inordinate delay has been caused in filing the CMA. He also in support of his case relied upon the decisions in the case of Postmaster General and others Vs. Living Media India Limited and another, reported in AIR 2012 SC 1506 and in the case of Basawaraj and another Vs. The Special land Acquisition Officer, reported in AIR 2014 SC 746. Thus, no liberal approach should be made to the facts and circumstances of the case. He also submitted that the dependants of a daily wage earner had filed the suit claiming compensation for negligence on the part of the appellant-company. The learned court below making a thread bare discussion on the materials available on record has come to a definite finding that there is no sufficient cause either for non- appearance of the appellant-company when the matter was called for hearing or for condonation of delay.
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 16 appropriate steps at the relevant time to defend his client. However, on being aware about the fact 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 and others (supra). But, the same are distinguishable on facts. In the case of Postmaster General and others (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 and another (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 17 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. Vs. Bhootnath Banerjee and others, AIR 1964 sc 1336; Lala Matadin Vs. A.Narayanan, AIR 1970 SC 1953; Parimal Vs. Veena @ Bharti, AIR 2011 SC 1150; and Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, AIR 2012 SC 1629) In the case at hand, no material is placed before this Court to come to a conclusion that the delay caused in filing the CMA is deliberate. Moreover, there are materials to show that the appellant- Company acted promptly to get the ex parte decree set aside, when it came to its knowledge. In the facts and circumstances, some delay has occurred, but that by itself, cannot constitute 'negligence' of the defendant-appellant. Thus, in the facts and circumstances discussed above, taking a liberal view, this Court feels that the cause assigned by the appellant-company is sufficient to condone the delay as well as to set aside the ex parte decree, more particularly when the appellant- company in the written statement filed along with the petition under Order 9 Rule 13 C.P.C., a copy of which has been produced before this Court at the time of hearing of this appeal, has raised some substantial grounds which require adjudication. 18
21. Another material aspect while considering the petition under Order 9 Rule 13 C.P.C. is whether the appellant-defendant would be prejudiced by setting aside the ex parte decree and if the same can be compensated with cost. In the instant case, the dependants of the deceased Prafulla Ghibila had filed the suit in the year, 2012 and the first date of appearance of the defendants was on 3.8.2012. The ex parte judgment was passed on 16.3.2013 and the decree was signed on 25.3.2013. The petition for setting aside the ex parte decree i.e. C.MA. No. 17 of 2013 was filed on 15.11.2013. In this process, though a decree was passed in favour of the plaintiffs, they are prevented from enjoying the fruits of the decree since 25.3.2013. If the ex parte decree is set aside, they have to fight out the litigation to establish their rights. Pursuant to the order dated 29.4.2015 passed by this Court in Misc. Case Non. 286 of 2013, the decreetal amount of Rs.19,64,985/-, which includes compensation amount, interest accrued and cost, has already been deposited in the executing court by the appellant-company. Hence, there would be no difficulty in realizing the decretal amount, if occasion arises. Taking into the aforesaid facts and circumstances of the case, this Court feels that a cost of Rs. 30,000/- (Rupees thirty thousand only) would be just and proper to meet the ends of justice.
22. In view of the above, the impugned order dated 24.7.2014 passed in CMA No. 17 of 2013 arising out of C.S. No. 49 of 2012 by the learned Civil Judge (Senior Division), Sambalpur is set aside 19 subject to payment of cost of Rs. 30,000/- (Rupees thirty thousand only) to the plaintiff-respondents within a period of one month from today. It is further directed that on payment of cost as directed above, the learned Civil Judge (Senior Division), Sambalpur shall accept the written statement and settle the issues and proceed with the trial of the case in accordance with law. An endeavour shall be made to dispose of the suit at an early date, preferably within a period of six months from the date of acceptance of the written statement.
23. With the aforesaid observations and directions, the appeal is allowed.
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K.R. Mohapatra, J.
Orissa High Court, Cuttack Dated the 10th July, 2015/bks/ss