Orissa High Court
Krushna Chandra Patra vs Alekh Chandra Mahakud And on 5 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.226 of 2020
Krushna Chandra Patra .... Petitioner
Mr. Alok Kumar Mohanty, Advocate
-versus-
Alekh Chandra Mahakud and .... Opp. Parties
another
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 05.12.2022
5. 1. This matter is taken up through Hybrid mode.
2. Petitioner in this CMP seeks to assail the order dated
25th January, 2020 (Annexure-6) passed by learned Additional
District Judge-cum-Special Judge (Vigilance), Dhenkanal in
FAO No.4 of 2019, whereby dismissing the appeal, learned
appellate Court confirmed the order dated 21st January, 2019
(Annexure-3 series) passed by learned Civil Judge (Senior
Division), Dhenkanal in CMA No.90 of 2018 dismissing an
application under Section 5 of the Limitation Act, 1963 and
consequently dismissing an application under Order IX Rule
13 CPC.
3. Mr. Mohanty, learned counsel strenuously submits that
CS No.331 of 2013 was field by the Plaintiff /Opposite Party
No.1 with a prayer to declare the sale deed executed by
Defendant No.2/Opposite Party No.2 in favour of the Petitioner
as null and void and not binding on him and for other
consequential and ancillary reliefs. The suit was decreed ex-
parte vide judgment dated 12th April, 2016, as summons of the
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suit was allegedly not served upon the Petitioner/Defendant
No.1, he could not know about pendency and proceedings of
the suit. He further submits that during the relevant period, the
Petitioner was contesting for MLA in the general election of
the year, 2014 and after being defeated he left Dhenkanal for a
period of six months and resided at Baripada. As such, he filed
CMA No.90 of 2018 under Order IX Rule 13 CPC along with
an application under Section 5 of the Limitation Act for
condonation of delay. Learned trial Court, vide order dated 21st
January, 2019, dismissed the application under Section 5 of the
Limitation Act and consequentially dismissed the petition
under Order IX Rule 13 CPC. Assailing the same, the
Petitioner preferred FAO No.4 of 2019, which was also
dismissed on contest. Hence, this CMP has been filed.
4. Mr. Mohanty, learned counsel strenuously argued the
matter challenging the sustainability of the impugned order
submitting that since the Petitioner has a meritorious case to be
considered in the suit and by virtue of the ex-parte decree a
valuable civil right has been taken away; he should have been
given an opportunity of hearing. Neither learned trial Court nor
the learned appellate Court considered this material aspect,
while adjudicating the matter. Accordingly, he prays for setting
aside the impugned order.
5. This Court scrutinized the record in the light of the
submission made by learned counsel for the Petitioner. On
perusal of the petition under Section 5 of the Limitation Act, it
appears that although the submissions made by learned counsel
for the petitioner has been reflected therein, but there is no
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specific averments as to when the Petitioner came to know
about the ex-parte decree and what steps he has taken
thereafter to file the petition under Order IX Rule 13 CPC. It
further appears that the Petitioner had also taken the plea that
summons were not duly served on him.
5.1 A petition under Order IX Rule 13 CPC can be filed
either on the ground that summons were not duly served on the
Petitioner or he is prevented by sufficient cause to appear in
Court on the date of hearing of the suit. On perusal of the
record, it appears that the Petitioner has submitted that the
summons was not duly served on him. However, the plea was
rejected by the Courts referring to the order sheet of the suit.
No convincing material is placed before this Court to
appreciate such a plea. Moreover, it is incumbent on the
Petitioner to establish that when the ex-parte decree came to
his knowledge, which is conspicuously absent. There is also no
explanation as to what steps the Petitioner has taken to file the
petition under Order IX Rule 13 CPC after the ex parte decree
came to his knowledge. Plea taken by the Petitioner that he was
contesting the general election for the year, 2014 and after
being defeated he left Dhenkanal for six months cannot be a
ground to allow the petition for condonation of delay of more
than two years in filing the petition under Order IX Rule 13
CPC, more particularly in absence of detailed particulars to
that effect. Mr. Mohanty, learned counsel for the Petitioner
placed reliance upon a case law of this Court in the case of
Umesh Ch. Singh Vs. Union of India 2 Others, reported in
2014 (II) OLR 750 , in which it is held as follows:-
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" In the instant case, the facts are different. Here, in the
O.A. No. 259 of 2014, since the engaged counsel was not
interested to prosecute the case, the O.A. was dismissed for
default and the said fact was also not communicated to the
petitioner. The petitioner after knowing about dismissal of
the O.A. from other sources, came to the Tribunal and filed
restoration application along with the petition for
condonation of delay through another counsel. Therefore,
the petitioner should not suffer due to laches on the part of
his counsel. In both the Supreme Court judgments, referred
to above, facts do not involve lack of diligence on the part
of the lawyer to prosecute the case. It is well settled that for
the fault of the Advocate, a party should not be penalized. (
See93 (2002) CLT 794 (Balajinath Padhi v. Central
Administrative Tribunal and others). In the instant case,
delay has been explained by the petitioner properly.
Therefore, the Tribunal should not have rejected the
petitions filed by the petitioner. In the case reported in
(2000) 10 SCC 264 (Mahkali Engineering Corporation and
another v. R.C. Subramanyam and others), it has been held
that where order impugned in review petition was passed in
absence of counsel for review petitioner, the High Court
ought to have allowed the review petition and heard the
matter on merits."
(emphasis supplied)
When the Petitioner has failed to lay a foundation to consider
the application under Section 5 of the Limitation Act, the case
law cited supra will of no assistance to him.
6. In view of the above, I do not find any infirmity in the
impugned order. Accordingly, the CMP being devoid of any
merit, stands dismissed.
(K.R. Mohapatra)
Judge
s.s.satapathy
