Orissa High Court
Rahasabihari@Rasabihari Pati vs Kali Thakurani on 25 April, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.887 of 2024
Rahasabihari@Rasabihari Pati .... Petitioner
Ms. S. Mishra, Advocate
-Versus-
Kali Thakurani, represented through .... Opposite Parties
the Sub-CoIlector-cum-Executive
Officer, Endowment, Bhawanipatna
and another
Mr. C.M. Singh, ASC
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
Order 25.04.2025
No.
04. 1. This matter is taken up through virtual mode.
2. Heard Ms. Mishra, learned counsel for the petitioner.
3. None appears for the opposite parties. This Court by order
dated 6th February, 2025 had issued notices to the opposite parties.
AD has not returned from opposite party No.1. As per the postal
tracking report at Flag-B, it reveals service of such notice on
opposite party No.1 on 25th February, 2025 and hence, the same is
treated as sufficient. Since, the opposite parties including opposite
party No.2 as AD returned from him after valid service have not
responded to the notices issued, hearing of the matter is taken up
for disposal on merit.
4. Instant petition is filed by the petitioner assailing the
correctness of the impugned judgement dated 20th May, 2024
passed in Civil Revision No.2 of 2023 by learned District Judge,
Kalahandi, Bhawanipatna confirming the order dated 1st September,
2023 in CMA No.18 of 2017 of learned Civil Judge (Junior
Division), Bhawanipatna arising out of TS No.53/43 of 1997-2000
on the grounds inter alia that the same is legally not tenable, hence,
therefore, liable to be interfered with and set aside.
5. Ms. Mishra, learned counsel for the petitioner submits that
the suit was instituted in the year 2000 by the petitioner, wherein,
an ex-parte judgment and decree was passed on 13th April, 2023.
The submission is that a decree was drawn up as per Annexure-4.
The further submission of Ms. Mishra, learned counsel for the
petitioner is that nearly after 17 years, opposite party No.1 moved
an application under Order 9 Rule 13 CPC seeking the ex-parte
decree in TS No.53/43 of 1997-2000 to be set aside and the same
was entertained by the court of 1st instance and was allowed. It is
submitted that against the decision of learned Civil Judge (Junior
Division), Bhawanipatna in CMA No.18 of 2017, the petitioner filed
the revision which has led to the passing the impugned judgment
dated 20th May, 2024 as at Annexure-4. The contention is that the
learned courts below could not have allowed such restoration of
the suit setting aside the ex-parte judgment and decree dated 13th
April, 2023 as per Annexure-4 after about 17 years. The further
contention is that a right has accrued in favour of the petitioner
with long lapse of time, considering which, the learned courts below
ought not to have restored the suit. In support of such contention,
Ms. Mishra, learned counsel cited the following decision of the Apex
Court in the case of Union of India (UOI) and others Vrs. Jahangir
Byramji Jeejeebhoy (D) through his LRs AIR 2024 SC 1884.
Referring to the decision (supra), it is the submission of Ms. Mishra,
learned counsel that the impugned judgement as at Annexure-4 is
not sustainable in law, inasmuch as, the delay could not have been
condoned while seeking restoration of the suit in terms of Order 9
Rule 13 CPC.
6. A copy of the plaint is at Annexure-1 and the same is
perused. The suit was instituted by the petitioner claiming right, title
and interest over and in respect of the land in question for having
perfected title by way of adverse possession and permanent
injunction. Considering the evidence received from the petitioner
and in absence of the opposite parties, learned Civil Judge (Junior
Division), Bhawanipatna disposed of the suit vide Annexure-4. As
earlier stated, in 2017, opposite party No.1 knocked the doors of
the learned Civil court with such an application under Order 9 Rule
13 CPC and it was allowed and finally affirmed by the Court in
revision. The question is, whether, sufficient cause was shown by
opposite party No.1, while obtaining such an order from the court
of 1st instance confirmed in Civil Revision No.2 of 2023. In course of
hearing, Ms. Mishra, learned counsel for the petitioner refers to a
copy of the application in CMA No.18 of 2017 as at Annexure-4
with the claim that there has been no sufficient reason or any cause
being shown while demanding the ex-parte decree to be set aside as
per Order 9 Rule 13 CPC. In fact, it is revealed from Annexure-4
that opposite party No.1 had the knowledge about the suit and did
not file the WS. It was well within the knowledge of opposite party
No.2 as well, as further revealed. Admittedly, the delay of 17 years
is substantial and same was required to be duly explained by
opposite party No.1, in particular. Furthermore, on a bare reading
of Annexure-4, the Court does not find any such sufficient cause
being shown and proved by opposite party No.1, while applying
under Order 9 Rule 13 CPC.
7. In Jahangir Byramji Jeejeebhoy (supra), the Supreme Court
had the occasion to consider the delay aspect and concluded that
delay should not be excused as a matter of generosity; rendering
substantial justice is not to cause prejudice to the opposite party;
that party has to be reasonably diligent in prosecuting the matter
and this vital test for condoning the delay is to be satisfied. In fact,
as to the ratio decided in the above case, delay should not be
liberally condoned as it is likely to subject the other side to
substantial prejudice. In the case at hand, on a bare reading of
Annexure-3, opposite party No.1 claimed not to have made up a
case duly explaining the delay of 17 years. Each day's delay is
necessarily needs explanation but it has to be a reasonable and
acceptable one. The Court finds that the opposite parties had the
knowledge about the suit instituted in the year 2000, no steps were
taken from the side of opposite party No.2 either apart from the
default on the part of opposite party No.1. A delay of 17 years is
huge and considerable, which needed proper explanation from
opposite party No.1 but the same is conspicuously absent upon a
reading of Annexure-3. In view of the law laid down by the Apex
Court in the decision (supra), a Court cannot generously condone
an otherwise gross default. As in the present case, nearly 17 years
after, opposite party No.1 woke up out of deep slumber and moved
the learned Civil court seeking the ex-parte decree to be set aside, in
absence of any sufficient cause being shown at least with a
reasonable explanation, the Court reaches at a conclusion that the
impugned judgment in Civil Revision No.2 of 2023 cannot be
sustained in law.
8. Accordingly, it is directed.
9. In the result, the CMP stands allowed. As a necessary
corollary, the impugned judgement dated 20th May, 2024 in Civil
Revision No.2 of 2023 by learned District Judge, Kalahandi,
Bhawanipatna is hereby set aside. In the circumstances, however,
there is no order as to costs.
10. Urgent certified copy of this order be issued as per rules.
(R.K. Pattanaik)
Judge
TUDU
