Orissa High Court
Chinmaya Sahu And Another vs Amit Kumar Sahu on 14 November, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 15-Nov-2023 18:48:56
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 804 OF 2023
(An application under Articles 226 & 227 of the
Constitution of India)
*****
Chinmaya Sahu and another
...... Petitioners
-Versus-
Amit Kumar Sahu
....... Opp. Party
Advocates appeared:
For Petitioners : Mr. Chitta Ranjan Nanda,
Advocate
For Opp. Party : Mr. Swarup Kumar Patnaik,
Advocate
CORAM :
MR. JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 14.11.2023
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Judgment dated 11th May, 2023 (Annexure-4) passed by
learned 1st Additional District & Sessions Judge, Baripada,
Mayurbhanj in F.A.O. No.5 of 2023 is under challenge in this
CMP, whereby dismissing the appeal, learned appellate Court
confirmed the order dated 14th October, 2022 (Annexure-3)
passed by learned Additional Senior Civil Judge, Baripada in
Signature Not Verified // 2 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 15-Nov-2023 18:48:56
C.M.A. No.10 of 2022 (arising out of C.S. No.535 of 2015)
dismissing an application under Order IX Rule 13 CPC.
3. Mr. Nanda, learned counsel for the Petitioners submits
that the Plaintiff-Opposite Party filed the suit for eviction,
mandatory and prohibitory injunction. The Defendants-
Petitioners though appeared in the suit through their learned
Advocate, but did not file the written statement and contest the
suit. Accordingly, they were set ex parte and subsequently, ex
parte judgment was passed on 24th February, 2022. The
Defendants-Petitioners could not know about the ex parte
judgment passed against them, as learned Advocate appearing on
their behalf did not intimate the same. When the Defendants-
Petitioners came to know about the ex parte judgment passed in
the suit, they filed an application in C.M.A. No.10 of 2022 on
26th April, 2022. Although there was a delay in filing the
petition under Order IX Rule 13 CPC, but learned Advocate
appearing for the Petitioners on a bona fide impression that the
period of limitation will reckon from the date of knowledge of
the ex parte judgment by the Defendants-Petitioners, did not file
any application under Section 5 of the Limitation Act for
condonation of delay. Objections were filed stating that petition
for condonation of delay was not filed. Taking note of the
objection, learned trial Court dismissed the petition under Order
IX Rule 13 CPC vide judgment dated 14th October, 2022 under
Annexure-3. The sole ground of rejection of the petition under
Order IX Rule 13 CPC was that the petition under Order IX Rule
13 CPC was not accompanied with an application for
Signature Not Verified // 3 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 15-Nov-2023 18:48:56
condonation of delay. Learned appellate Court also dismissed
the appeal vide judgment under Annexure-4 on the same ground.
Hence, this CMP has been filed.
4. It is his submission that for the latches of the Advocate,
the party should not suffer. He further submits that there was a
meager delay in filing the petition under Order IX Rule 13 CPC.
As such, learned Courts below should not have adopted hyper
technicality in rejecting the petition under Order IX Rule 13
CPC. The Defendants-Petitioners should have been given an
opportunity to file an application under Section 5 of the
Limitation Act for condonation of delay in filing the petition
under Order IX Rule 13 CPC. This aspect was not taken into
consideration by either of the Courts. He, therefore, prays for
setting aside the impugned orders under Annexures-3 and 4 and
to set aside the ex parte decree permitting the Petitioners to
contest the suit.
5. Mr. Patnaik, learned counsel for the Opposite Party by
filing a date chart submits that summons were issued to the
Defendants on 14th October, 2015. They entered appearance on
18th February, 2016. Although they sought for adjournment to
file written statement, but for the reasons best known, no written
statement was filed by the Defendants. As such, vide order dated
22nd June, 2016, the Defendants were precluded from filing the
written statement. The Defendants were set ex parte vide order
dated 3rd April, 2019 and ex parte evidence was recorded.
Argument of the suit was closed on 22nd February, 2022 and on
24th February, 2022, ex parte judgment was pronounced in the
Signature Not Verified // 4 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 15-Nov-2023 18:48:56
suit. Decree was drawn up on 10th March, 2022. In their
application under Order IX Rule 13 CPC, which was filed on
26th April, 2022, the Defendants asserted that they came to know
about the ex parte judgment and decree on 5th April, 2022. Thus,
the application under Order IX Rule 13 CPC was filed without
an application for condonation of delay.
6. Mr. Patnaik, learned counsel further submits that since
the petition under Order IX Rule 13 CPC was filed beyond the
statutory period of thirty days, as provided under Article 123 of
the Limitation Act, the petition should have accompanied with
the petition for condonation of delay. In absence of any
application for condonation of delay, learned Courts have
committed no error in rejecting the petition under Order IX Rule
13 CPC, as it could not have been entertained beyond the
statutory period without condoning the delay. In support of his
case, Mr. Patnaik, learned counsel for the Opposite Party relied
upon the decision in the case of Himansu Sekhar Srichandan -
v- Sudhir Ranjan Patra (since dead) Jully Patra and others,
reported in 2022 SCC OnLine Ori 576, wherein at Paragraph-8,
it is stated as under:
"8. Before delving into the rival contentions of the
parties, it is to be kept in mind that Order IX CPC
deals with appearance of parties and consequences of
their non-appearance in the suit. Rule 13 of Order IX
CPC deals with setting aside the decree passed ex
parte. It provides that if the Court is satisfied that
either the summons was not duly served on the
Defendant or that the Defendant was prevented by
sufficient cause from appearing in the Court when the
suit was called on for hearing, the Court shall make an
order for setting aside the decree as against him on
such terms as to cost as it thinks fit. Thus, it essentially
Signature Not Verified // 5 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 15-Nov-2023 18:48:56
provides two contingencies under which an ex parte
decree can be set aside. The first contingency is when
the summons is not duly served on the Defendant. The
second one is, if summon is duly served, then the
Defendant has to show sufficient cause to the
satisfaction of the Court for his nonappearance on the
date when the suit was called on for hearing. In the
instant case, the situation falls under second category.
Admittedly, the Defendant Nos.2 and 3 were duly
served with the summons; they appeared through
learned counsel and sought for adjournment on
several occasions to file written statement. They were
admittedly set ex parte on 4th July, 2017 on which
date the suit was called on for hearing. Although
subsequently filed petitions for adjournment dated 7th
July, 2017 and 15th July, 2017, but no prayer to set
aside the ex parte order was made nor the written
statement was filed on their behalf. Admittedly, the ex
parte judgment was pronounced on 19th July, 2017
and the decree was drawn up on 24th July, 2017 and
was sealed and signed on 27th July, 2017. Article 123
of the Limitation Act provides that when summons
were duly served on the Defendants, the limitation for
filing of petition under Order IX Rule 13 CPC
commences from the date of passing of the ex parte
decree. The period of limitation for filing of such
application, as provided under Article 123 of the
Limitation Act, is thirty days. Admittedly, the petition
under Order IX Rule 13 CPC was filed on 13th March,
2018 along with a petition under Section 5 of the
Limitation Act. Materials available on record reveal
that Defendant Nos.2 and 3 have made an endeavour
to explain the delay in filing the petition under Order
IX Rule 13 CPC stating that on 4th January, 2018 they
came to know about the ex parte decree from their
learned Advocate and thereafter from the Advocate's
Clerk. Immediately thereafter, steps were taken to
obtain certified copy of the judgment and decree, and
after obtaining the same on 17th February, 2018, the
petition for setting aside ex parte decree was filed,
within thirty days, i.e., 13th March, 2018."
Signature Not Verified // 6 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 15-Nov-2023 18:48:56
It is his submission that no prayer was also made at any
point of time for condonation of delay. Hence, the CMP does
not merit consideration and should be dismissed.
7. Considering the submissions made by learned counsel for
the parties and on perusal of the record, it is apparent that the ex
parte judgment was passed on 24th February, 2022 and the
decree was drawn up on 10th March, 2022. The application for
setting aside the ex parte decree was filed on 26th April, 2022.
As such, the petition under Order IX Rule 13 CPC in C.M.A.
No.10 of 2022 was filed beyond the statutory period. Thus, it
should have accompanied with an application for condonation of
delay.
8. It is submitted by Mr. Nanda, learned counsel for the
Petitioners that learned Advocate was under a bona fide
impression that the period of limitation would commence from
the date of knowledge. Since the ex parte judgment and decree
came to the knowledge of the Defendants-Petitioners on 5th
April, 2022, the application under Order IX Rule 13 CPC was
filed without accompanying an application for condonation of
delay. He also relied upon the decision in the case of Albert
Morris -v- J.B. Simons, reported in 2017 (I) CLR (SC) 1047.
9. The contention raised by Mr. Nanda, learned counsel for
the Petitioners cannot be accepted, as learned Advocate
appearing for the Defendants had ample opportunity either to file
an application for condonation of delay or to make an oral prayer
in that regard. Although specific objection was raised with
regard to the limitation, the Defendants did not take care to make
Signature Not Verified // 7 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 15-Nov-2023 18:48:56
a prayer for condonation of delay. Admittedly, the summons
were duly served on the Defendants and they had entered
appearance.
10. Vide order dated 22nd June, 2016, they were precluded
from filing the written statement. But, they were allowed to
participate in the proceeding of the suit. Accepting the same, the
Defendants participated in the suit. But, for the reasons best
known they did not appear subsequently when the matter was
called for hearing. Hence, they were set ex parte on 3rd April,
2019 and hearing of the suit proceeded. From the conduct of the
Defendants, it appears that they were thoroughly negligent in
asserting their right, if any, in the suit. Only by alleging that
they should not suffer for the latches of the Advocate is not
sufficient to take away the valuable right accrued in the favour
of the Plaintiff by the judgment and decree. In the instant case,
the Defendants-Petitioners have not made out any ground to
interfere with the impugned orders under Annexures-3 and 4.
11. Accordingly, the CMP being devoid of any merit stands
dismissed.
Urgent certified copy of this judgment be granted on
proper application.
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack,
Dated 14th November, 2023/Madhu
