Santosh Kumar Panda vs Kulamani Panda & Another ...... Opp. ...
2025 Latest Caselaw 5646 Ori

Citation : 2025 Latest Caselaw 5646 Ori
Judgement Date : 20 August, 2025

Orissa High Court

Santosh Kumar Panda vs Kulamani Panda & Another ...... Opp. ... on 20 August, 2025

Author: Sashikanta Mishra

Bench: Sashikanta Mishra

          IN THE HIGH COURT OF ORISSA AT CUTTACK
                         C.M.P. No.1262 of 2024

    An application under Articles 226 and 227 of the Constitution of
    India)
                                 ---------------
      Santosh Kumar Panda                     ......       Petitioner

                               -Versus-

      Kulamani Panda & Another             ......        Opp. Parties


      Advocate(s) appeared in this case:-
      _______________________________________________________
        For Petitioner      : Mr. S. Sahu, Advocate

         For Opp. Parties : Mr. B.N. Panda, Advocate

         ___________________________________________
      CORAM: JUSTICE SASHIKANTA MISHRA
                            JUDGMENT

20thof August, 2025 SASHIKANTA MISHRA, J.

The petitioner questions the correctness of order

dated 08.08.2024 passed by the learned District Judge,

Jajpur in dismissing Civil Revision No.6 of 2023 filed by

him whereby, the order passed by the trial Court restoring

the suit dismissed for default, was confirmed.

2. The facts, relevant only to decide the present

application are that the Opposite Parties/plaintiffs filed

C.S. No.242 of 2009 wherein, the present petitioner was

the sole defendant. By order dated 20.09.2021, the trial

Court dismissed the suit for non-prosecution as the

plaintiff had taken no steps but the defendant was

present. An application was filed by the plaintiff under

Order IX Rule 9 of the CPC being C.M.A No.118 of 2021,

before the Court below seeking restoration of the suit. The

defendant filed objection. Upon such objection, the parties

adduced oral evidence. By order dated 14.09.2023, the

trial Court held that the conducting counsel of the plaintiff

not having intimated him about the date of posting of the

suit same was a good cause for his non-appearance.

Holding thus, the application was allowed subject to cost

of Rs.1000/-.

3. The defendant carried revision to the District

Court. The learned District Judge, by the order impugned,

refused to interfere by holding that the trial Court had not

exercised jurisdiction not vested in it nor acted in exercise

of jurisdiction illegally or with material irregularity. Being

aggrieved, the defendant has approached this Court in the

present application.

4. Heard Mr. S. Sahu, learned counsel for the

petitioner-defendant and Mr. B.N. Panda, learned counsel

for the plaintiff-Opposite Parties.

5. Mr. Sahu would argue that as per the Article 122

of the Limitation Act, an application for restoration of a

suit dismissed for default can be filed within thirty days of

the date of dismissal. In the instant case, the suit was

dismissed for default on 20.09.2021 but the application

for restoration was filed on 17.11.2021, which is beyond

the period of limitation. Further, no application seeking

condonation of delay was filed. The Courts below did not

consider the issue of limitation. The revisional Court must

therefore, be deem to have committed serious error of law

in rejecting the petition for revision.

On merits, Mr. Sahu would argue that the plea taken

by the plaintiffs to explain his non-appearance cannot be

accepted in view of the admitted fact that they were

prosecuting another suit in the very same Court at the

relevant time. Therefore, it cannot be said that they were

not aware of the date of posting of the suit in question.

6. Mr. B.N. Panda, on the other hand, would argue

that the learned District Judge finding no illegality

whatsoever in the order passed by the trial Court refused

to exercise revisional jurisdiction. Once the revisional

Court passed its order no further challenge can be made

to the same. Mr. Panda further submits that the revision

filed by the defendant was otherwise not maintainable in

view of the fact that the order allowing restoration is

appealable. In this context, he has relied upon the

judgment of the Supreme Court in the case of Kamla Devi

v. Kushal Kanwar & Another AIR 2007 SC 663.

7. In view of the rival contentions noted above, it is

evident that the first question that falls for consideration

is, whether the application for restoration was barred by

limitation.

8. Admittedly, the trial Court dismissed the suit for

non-prosecution on 20.09.2021 when the plaintiffs were

absent but the defendant was present. This must

therefore, held to be an order passed under Order IX Rule

8 of CPC. The application for restoration must therefore be

held to have been filed under the provisions of Order IX

Rule 9 of CPC. Coming to the question of limitation, Article

122 of the Limitation Act provides limitation of thirty days

to restore the suit dismissed for default of appearance or

for want of prosecution. As already stated, the application

for restoration was filed on 17.11.2021, which is beyond

the period of thirty days. No application for condonation of

delay was filed explaining the delay. The trial Court has

not considered the issue of limitation at all in its order of

restoration. In a somewhat similar case, a learned Single

Judge of Madras High Court, in the case of M. Kripanithi

V. P. Anbumani, AIR 2022 MADRAS 228 held as follows:-

"13.But, this does not mean that the application is allowed. The order passed in nonest only because the learned Judge should have been insisted that an application under Section 5 of Limitation Act should have been filed and overlooking that particular basic fact, passing an order in the application under Order 9 Rule 9 of CPC either dismissing it or allowing it would render the order nonest and will necessarily have to be interfered with by this Court."

9. It goes without saying that Section 3 of the

Limitation Act makes it obligatory for the Court to

consider the question of limitation irrespective of whether

the same is specifically raised before it or not.

Surprisingly, learned District Judge also appears to have

lost sight of this vital aspect, which being a point of law,

goes to the root of the matter. Viewed in the above

background, the finding of the revisional Court that the

trial Court committed no illegality cannot be sustained.

10. In all fairness, the revisional Court ought to have

examined the order of the trial Court on the touchstone of

law relating to limitation and with regard to the question